Special Counsel Urged For Nicarico Retrial

July 09, 1990|By Nancy Ryan.

New charges of prosecutorial misconduct and a request to appoint a special prosecutor in Alejandro Hernandez`s murder case will be argued in court Monday as both sides prepare for the second retrial in one of the county`s longest-running cases.

The 26-year-old defendant from Aurora is accused of the abduction, rape and murder of 10-year-old Jeanine Nicarico of Naperville on Feb. 25, 1983.

Since his first retrial ended in a mistrial on May 11, Hernandez`s attorneys have been preparing more than two dozen motions-most of them being repeated from the last trial-in an attempt to persuade Du Page County Circuit Judge John Nelligan to admit evidence considered favorable to their side.

But in several new motions, Hernandez`s attorneys, Michael Metnick and Jeffrey Urdangen, angrily catalog several allegations of misconduct by prosecutors Robert Kilander and Richard Stock during the May trial.

``A special prosecutor must be appointed in this case because the Du Page County state`s attorney`s office has repeatedly engaged in acts of midsconduct,`` states one motion. It calls for the special prosecutor to be taken from outside Du Page County.

Hernandez and Rolando Cruz were convicted in 1985 but new trials were ordered after the Illinois Supreme Court ruled that they should have been tried separately. Cruz was convicted a second time on Feb. 1 in Rockford, but a Bloomington jury could not reach a unanimous verdict in Hernandez`s retrial in May.

In another motion, the defense argues that Kilander should be disqualified because he could be a potential witness in the next trial during testimony on twice-convicted murderer Brian Dugan`s version of the killing.

Metnick and Urdangen have argued that Dugan, who is serving a life sentence for two unrelated murders, killed Jeanine Nicarico on his own. In 1985, Dugan told his attorneys that he alone broke into the Nicarico home and raped and murdered the girl.

Kilander interviewed Dugan`s attorney in November 1985, shortly after Dugan first said he killed the child. Since any information on the Dugan version is critical to the defense`s case, Urdangen said, Kilander could be asked to testify about that conversation. In the May trial, the defense attorneys asked for Kilander`s dismissal on the same grounds but their request was denied by Judge Edward Kowal.

``It`s just a rehash of old motions,`` said Kilander, who was reluctant to talk about the defense`s charges before Monday`s court hearing. The prosecution filed its response in court late Friday.

In a motion asking that charges against Hernandez be dismissed, the defense recounts a dramatic moment in Hernandez`s May trial when Metnick accused Kilander of consciously withholding certain evidence.

The motion claims that he did so because evidence regarding two shoe prints found outside the Nicarico home weakens the state`s longstanding argument that multiple intruders broke into the home to commit a burglary and then abducted the girl.

During closing arguments in Cruz`s January retrial, prosecutor Stock argued that the two prints were made by ``a band of burglars,`` including Cruz and Hernandez, who were casing the Nicarico home. But during Hernandez`s May trial, Metnick speculated that the prints were made by one of Jeanine`s older sisters or their high school friends during the intitial search for Jeanine.

Metnick was startled during the May trial when a prosecution witness, Detective Paul Sahs, an evidence technician who specializes in shoe print analysis, testified during cross-examination that the prints corresponded to a size 6. Hernandez wears a size 8 shoe and the other two original defendants wear size 9 1/2 and size 10 shoes.

The defense had learned about this through its own pretrial investigation but Metnick was enraged that Kilander and Stock had not submitted Sahs`

information before his testimony, as required, and did not ask Sahs about the print size during direct examination.

``In a case where the state is seeking to execute Alex Hernandez, the first assistant state`s attorney attempted to conceal evidence which, if revealed, would discredit the theory of prosecution the state has promoted for five years,`` according to the defense motion.